“NEGATIVE MEINUNGSFREIHEIT”? – Reaction to falsifying history by using the phrase ‘Polish death camps’ in media

date: 06 April 2021

location: Webinar

presenters: Dr. hab. Piotr Mostowik, Prof. UJ.

moderators: -

themes: Reaction to falsifying history by using the phrase ‘Polish death camps’ in media

The lecture by Dr Hab. Piotr Mostowik, Prof. UJ, and the following discussion with the students and scholars from Warsaw University and Jagiellonian University in Cracow were conducted online during the scientific association meeting. Discussions focused on complex legal issues originating from the following recent Polish and German judgments; the 22 December 2016 and 23rd March 2021 judgements of the Court of Appeals in Cracow, the judgement of 19 July 2018 of the German Supreme Court, rulings of the lower instances, and the opinion of the CJEU Advocate General delivered on 23 February 2021. The title of this event (‘Negative Meinungsfreiheit’) refers to arguments presented by the German court to deny recognition of the judgement of the Polish court in civil proceedings concerning the falsification of history.

The first case, discussed in detail, concerned the infringement of the personality rights of Mr Karol Tendera, a former Auschwitz concentration camp prisoner during the Second World War, from the use of an expression in an announcement for a documentary film published in July 2013 on the Zweites Deutsches Fernsehen website. The announcement used the expression ‘the Polish extermination camps of Majdanek and Auschwitz’. According to the judgement of the Polish Court, the defendant was ordered to apologise to the plaintiff and to publish the following statement on its website: ‘Zweites Deutsches Fernsehen, the publisher of the Internet portal, regrets the appearance of the article (..)on its portal. The expression, which is untrue and falsifies the history of the Polish nation, suggests that the death camps of Majdanek and Auschwitz were built and run by Poles, and it apologises to Karol Tendera, who was imprisoned in a German concentration camp, for violating his personality rights, in particular, his national identity —or sense of belonging to the Polish nation—and his national dignity’.

The next stages of the procedure took place in Germany after the motion of the declaration of enforcement of foreign judgments was filed under the law of the European Union. The Higher Regional Court in Koblenz (Oberlandesgericht Koblenz) also confirmed the enforcement of the Polish judgement in Germany on 11 January 2018. This court stated that ‘the defendant does not deny using the phrase ‘Polish extermination camps’ himself, which is untrue. An incorrect statement of fact is not subject to the protection of the fundamental right under Art. 5 sec. 1 sentence 1 GG’. However, the Polish judgement was not enforced in Germany because of the blocking decision of the German Supreme Court (Bundesgerichtshof). The latter ruling referred to an ‘obvious violation of the German public policy’ and ‘freedom of opinion’ (Meinungsfreiheit), which the Supreme Court referred to as a ‘constitutional right’ (Grundrecht).

The grounds for the abovementioned rulings were considered in the final part of the event and questions were posed regarding the details of such reasoning. The lecturer referred to the ordre public clause under Articles 34(1), 45(1) of the ‘Brussels I’ EU Regulation and to the ‘negative aspect of freedom of expression’ creatively interpreted from Article 5(1) of the Constitution. The Bundesgerichtshof expressed this last thought in the following way: ‘On the contrary, the subject of the legal examination in the procedure of the declaration of enforcement is rather solely the declaration for which the court has sentenced the defendant. The defendant is sentenced to adopt and publish the opinion of the Polish court from the defendant’s statement. This clearly infringes on the fundamental right of the defendant.’ From the

Then, the point of view of the Bundesgerichtshof—that enforcement of the Polish judgement of 2016 would violate the German public order—was compared to legal interpretations and approaches presented earlier by German courts of lower instances. The lecturer presented a theoretical opinion that it is difficult to agree with a redirect argumentation—redirecting discourse from personality rights to the given court sentence—that is focused not on the claimant’s relationship with the defendant but directed de facto against the judgement given in another member state. The ‘sublime’ interpretation of the negative aspect of the principle of freedom of opinion additionally raised to the rank of German , may be questionable.

The ensuing discussion covered the application of fundamental rights at the international level and the evaluation of the different German judgments of the lower instances and the Supreme Court. Discussion included perspectives from both private international law (with elements of international civil procedure) and public law, including the international standards on limits of freedom of expression (Article 10 of the European Convention on Human Rights).

Some participants deliberated whether the judgement of the Polish Court of 2016 could truly violate the negative freedom to express an opinion (negative Meinungsfreiheit), that is, the right not to have one’s own opinion, to not pronounce one’s opinion, to silence, and to be unable to compel another person to express someone else’s opinion as their own. The statement that the Polish judgement is an opinion (Meinungsäußerung, Werturteil) was questioned because—as was indirectly claimed by the Bundesgerichtshof—of the impossibility of examining whether a given statement (in this case, the sentence of a judgement) expresses truth or falsehood. The main objection to the Bundesgerichtshof’s argumentation was that the judgement ordering the correction of the false statement was moved to the category of ‘opinion’ (Meinung), so, the category of freedom of speech and opinion was subsequently bound (leading to the constitutional protection of this principle).

The event instructed students and scholars on the current development of ‘judicial cooperation in civil cases’ (Article 81 of the Treaty on the Functioning of the European Union). The exceptional possibility of non-recognition of a judgement given in another member state in a civil case ‘if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought’ was evaluated positively, even if the substantive perspective of the Bundesgerichtshof ruling may be viewed as questionable.

The lecture and discussion were beneficial in understanding and interpreting the fundamental rights provided in the European Convention of Human Rights, including the notions of ‘freedom of speech’, ‘freedom of opinion’, ‘freedom of expression’, and the limits to these rights (Article 10, ECHR). The discussion underlined that freedom of the press is of cardinal importance in a democratic society, but is not unlimited. A concerned party may be held civilly or even criminally liable by publishing specific expressions or statements in cases of defamation or the use of insulting language. One can even hold the view that the law of the Council of Europe precludes such an understanding of freedom of expression and speech, and that the grounds presented by Bundesgerichtshof in 2018 are contrary to the standards of the Council of Europe, in particular the limits in Article 10(2) with connection to Article 17 of the ECHR.

It was also observed that in recent decades, efforts from Polish officials were required to counteract the falsification of history through the use of the word ‘Polish’ in the context of crimes planned and organised by Nazi German invaders during World War II on the territory of occupied Poland. In particular, misleading expressions (e.g. ‘Polish death camps’) were corrected or explained in global media in the last decade (NBC, FOX TV, Daily MailNetflixWJC). These efforts have generally been viewed positively.

The lecturer (immediately after the event) and the Institute (by official correspondence), received positive feedback from the audience. The timeliness and the comprehensiveness of the legal approach presented—including the issues of fundamental rights—were most appreciated by participants.

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